Gray v. King

OPINION AND ORDER GRANTING PLAINTIFF'S MOTION TO
AMEND COMPLAINT [10] AND MOTION FOR EXTENSION OF TIME TO FILE
AMENDED COMPLAINT [13]

MONA
K. MAJZOUB UNITED STATES MAGISTRATE JUDGE

Plaintiff
Earl C. Gray, a prisoner at the Ojibway Correctional Facility
in Marenisco, Michigan, filed this pro se civil
rights action against Defendant James S. King, a Corrections
Officer with the Michigan Department of Corrections, on
October 12, 2016. (Docket no. 1.) Plaintiff alleges that a
group of inmates threatened to stab him, and that when he
informed Defendant about the threats, Defendant told
Plaintiff there was nothing Defendant could do unless
Plaintiff revealed the names of the inmates. Plaintiff
alleges that he did not know their names, and so nothing was
done to protect him. Later that evening, Plaintiff claims he
was attacked and stabbed, and then later transferred to a new
facility. (Id. at 3.) Plaintiff claims that
Defendant's alleged failure to protect Plaintiff from the
attack violates the Eighth Amendment to the United States
Constitution. (Id.)

Before
the Court are Plaintiff's Motion to Amend his
Complaint[1] (docket no. 10) and Plaintiff's Motion
for Extension of Time so He Could File his Amended Complaint
(docket no. 13). Defendant filed a Response to
Plaintiff's Motion to Amend. (Docket no. 12.) All
pretrial matters have been referred to the undersigned for
consideration. (Docket no. 11.) The undersigned has reviewed
the pleadings and dispenses with a hearing pursuant to
Eastern District of Michigan Local Rule 7.1(f).

I.
Governing Law & Analysis

Federal
Rule of Civil Procedure 15(a) provides that a “party
may amend its pleading once as a matter of course within: (A)
21 days after serving it, or (B) if the pleading is one to
which a responsive pleading is required, 21 days after
service of a responsive pleading or 21 days after service of
a motion under Rule 12(b), (e), or (f), whichever is
earlier.” Fed.R.Civ.P. 15(a)(1)(A)-(B). Otherwise,
“a party may amend its pleading only with opposing
party's written consent or the court's leave. The
court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2).

Through
his Motion to Amend, Plaintiff seeks to make a correction to
the factual allegations asserted in his original Complaint.
Specifically, Plaintiff originally alleged that the events
underlying his claim took place on November 18, 2004. (Docket
no. 1 at 3.) In the Motion to Amend, Plaintiff asserts that
this was a mistake, and that the events actually took place
on November 13, 2014. (Docket no. 10 at 4.) As will be
discussed in the Court's forthcoming Report and
Recommendation concerning Defendant's Motion to Dismiss,
this correction brings Plaintiff's claim within the
three-year statute of limitations period applicable to
plaintiff's claims. See McCune v. City of Grand
Rapids, 842 F.2d 903, 905 (6th Cir. 1988) (holding that
Michigan's three-year statute of limitations for general
personal injury claims found in Mich. Comp. Laws §
600.5805(10) is the applicable statute of limitations for 42
U.S.C. § 1983 claims).

Defendant
has consented to the amendment in writing. (Docket no. 12-3
(correspondence between Plaintiff and counsel for Defendant,
indicating that Defendant has “no objection to
[Plaintiff] amending the complaint to correct the year to
2014”)). The Court will therefore grant Plaintiff's
Motion to Amend (docket no. 10) in accordance with Federal
Rule of Civil Procedure 15(a)(2). The Court will also grant
Plaintiff's Motion for Extension of Time to file his
amended complaint (docket no. 13), as Defendant did not
object, and Plaintiff's delay was not undue. The Court
accepts the Amended Complaint filed at Docket no. 15 as
Plaintiff's Amended Complaint, on which the parties
should proceed for the remainder of this case. The Court will
order Defendant to file a responsive pleading to the Amended
Complaint within fourteen (14) days after entry of this
Opinion and Order, in accordance with Federal Rule of Civil
Procedure 15(a)(3).

IT IS
THEREFORE ORDERED that Plaintiff's Motion to Amend
(docket no. 10) and Plaintiff's Motion for Extension of
Time (docket no. 13) are GRANTED.

IT IS
FURTHER ORDERED that Defendant must file a responsive
pleading to Plaintiff's Amended Complaint at Docket no.
15 within fourteen (14) days after entry of this Opinion and
Order.

NOTICE
TO THE PARTIES

Pursuant
to Fed.R.Civ.P. 72(a), the parties have a period of fourteen
days from the date of this Order within which to file any
written appeal to the District Judge as may be permissible
under 28 U.S.C. 636(b)(1).

PROOF
OF SERVICE

I
hereby certify that a copy of this Order was served upon
Plaintiff and ...

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